17-2673 Schroeter v. Whitaker BIA Straus, IJ A205 497 474 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do no t have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must ci te either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on the 8 th day of January, two thousand nineteen. Present: ROBERT A. KATZMANN, Chief Judge , DENNY CHIN, Circuit Judge , JEFFREY A. MEYER, District Judge

. *

________________________________________________ LEON MICHAEL SCHROETER, aka Leom Schroeter,
Petitioner , v. No. 17-2673 MATTHEW G. WHITAKER, Acting United States Attorney General, Respondent.

____________________________________________ For Petitioner: Gregory Osakwe, Law Offi ces of Gregory C. Osakwe, Hartford, CT.

* Judge Jeffrey A. Meyer, of the United St ates District Court for the District of Connecticut, sitting by designation.2 For Respondent: Stefanie A. Svoren-Ja y, Trial Attorney, Office of Immigration Litigation, for Joseph H. Hunt, Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, DC. For Amicus Curiae: Caitlin J. Halligan (William J. Moccia, Lee R. Crain, on the brief ), Gibson, Dunn & Crutcher LLP, New York, NY. UPON DUE CONSIDERATION of this petiti on for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED , ADJUDGED , and DECREED that the petition is DENIED in part and DISMISSED in part. Petitioner Leon Michael Schroeter, a native and citizen of Jamaica, seeks review of an August 21, 2017 decision of the BIA affirming a November 29, 2016 decision by an Immigration Judge (“IJ”) denying Schroeter’s application for adjustment of status under 8 U.S.C. § 1255(a), as the beneficiary of an approved Form I-130, Pe tition for Alien Relative , filed on his behalf by his wife, who is a naturali zed United States citizen. In re Leon Michael Schroeter , No. A205 497 474 (B.I.A. Aug. 21, 2017), aff’g No. A205 497 474 (Immig. Ct. Hartford Nov. 29, 2016). We assume the parties’ familiarity with the underlying facts and the procedural history in this case. 1 The agency found that Schroeter was ineligible for adjustment of status because he made a material misrepresentation at his merits hearing before the IJ. Specifically, Schroeter initially denied having had sexual contact with M.P ., the 17-year-old complainant in criminal proceedings in which Schroeter was charged w ith, and then acquitted of, sexual assault. Schroeter later admitted that he and M.P. had e ngaged in some sexual contact. The IJ concluded, and the BIA agreed, that this misrepresentati on was material because Schroeter “intended to prevent the [immigration] [c]ourt from cons idering his sexual conduct with a minor in

1 At the Court’s request, Caitlin J. Halligan se rved as amicus curiae. We appreciate the very constructive contributions of Ms. Halligan and her colleagues at th e firm of Gibson, Dunn & Crutcher LLP.3 determining whether his application [for adjustme nt of status] should be granted as a matter of discretion.” App. 68; see also Special App. 2 n.1 (“[Schroeter’s ] misrepresentation . . . was capable of influencing the Immigration Judge’s deci sion whether to grant adjustment of status in discretion.”). The IJ further found that Schroeter was ineligible fo r a waiver of inadmissibility under 8 U.S.C. § 1182(i) because he failed to demonstrate that his wife would experience extreme hardship were he deported. We review the IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t of
Justice , 426 F.3d 520, 522 (2d Cir. 2005). To the extent that we have juri sdiction, we review constitutional claims and questions of law de novo , see Guo Qi Wang v. Holder , 583 F.3d 86, 90 (2d Cir. 2009), and “an agency’s factual fi ndings under the substantial evidence standard, treating them as ‘conclusive unl ess any reasonable adjudicator w ould be compelled to conclude to the contrary,’” Emokah v. Mukasey , 523 F.3d 110, 116 (2d Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). Our review of the agency’s disc retionary denial of a waiver of inadmissibility under 8 U.S.C. § 1182(i) is limited to constitu tional claims and questions of law. See 8 U.S.C. §§ 1182(i)(2), 1252(a)(2)(B), (D); see also Ahmed v. Holder , 624 F.3d 150, 153-54 (2d Cir. 2010). Under 8 U.S.C. § 1255(i)(2), the agency may adju st the status of applicants who are both “eligible to receive an immigr ant visa” and “admissible to the United States for permanent residence” to that of lawful permanent resident. An applicant is inadmissible if he or she, “by fraud or willfully misrepresenting a material fact, seeks to procure . . . [an immigration] benefit.” 8 U.S.C. § 1182(a)(6)(C)(i). However, the agency may in its discretion waive inadmissibility based on a material misrepresentation “in the case of an immigrant who is the spouse, son, or daughter of a United States citizen . . . if it is established . . . th at the refusal of admission to the4 United States of such immigrant alien would result in extreme hardship to the citizen . . . spouse or parent of such an alien.” 8 U.S.C. § 1182(i)(1). Obtaining a di scretionary waiver of inadmissibility involves a two-step process: the n oncitizen must prove stat utory eligibility, and if that is satisfied, the agency deci des whether to grant or deny the wa iver as a matter of discretion. See In re Mendez-Moralez , 21 I. & N. Dec. 296, 301 (B.I.A. 1996).
First , the BIA did not err in finding that Schroe ter’s misrepresentati on was material and made to procure an immigration benefit. 2 A misrepresentation is material “if it has a natural tendency to influence or was cap able of influencing, the decision of the decisionmaking body to which it was addressed.” Emokah , 523 F.3d at 117 (internal citation and quotation marks omitted). In deciding whether to grant or deny discre tionary relief, such as adjustment of status, the agency may consider conduct underlying criminal charges even if the ch arges do not result in a conviction. See Wallace v. Gonzales , 463 F.3d 135, 139 (2d Cir. 2006) (per curiam) (declining “to prevent an IJ or the BIA from considering an applican t’s anti-social conduct—whether leading to a conviction, a Youthf ul Offender Adjudication, or no legal judgment whatsoever—as an adverse factor in evaluating an application for discretionary reli ef.”). Moreover, the agency, in its discretion, may consider some non-criminal conduct that, like the conduct here, is not constitutionally protected. Cf. 8 U.S.C. § 1101(f) (precluding a finding of good moral character where a person is a “habitual drunkard”). This is not an instance of the agency considering “[p]rivate sexual conduct be tween consenting adults.” Yepes-Prado v. U.S. INS. , 10 F.3d 1363, 1368 (9th Cir. 1993), as amended (Nov. 12, 1993). Indeed, although Schroeter’s contact with M.P. was not illegal in Connecticut, it would have been illegal in severa l other states, where the

2 Although Schroeter did not raise the issue of materiality before the BIA, the issue is properly before us because “the BIA in fact addressed the mer its [of the argument] and never clearly stated that the issue was waived.” Douglas v. INS , 28 F.3d 241, 245 (2d Cir. 1994).5 age of consent is eighteen in at least some cases. See, e.g. , Ariz. Rev. Stat. § 13-1405(A); Cal. Penal Code §§ 261.5(a), (c); Del. Code Ann. tit. 11 § 770(a)(2); Fla. Stat. Ann. § 794.05(1); Ky. Rev. Stat. § 510.020(3)(b); Or. St at. § 163.435; Tenn. Code Ann. § 39-13-506(a)-(c); Utah Code Ann. § 76-5-406(11); Wis. Stat. Ann. §§ 948.01(1), 948.09; see also Esquivel-Quintana v.
Sessions , 137 S. Ct. 1562, 1571 (2017) (noting that ten st ates set the age of consent at eighteen when the Immigration and Nationality Act was am ended to make “sexual abuse of a minor” an aggravated felony). Nor is there any basis to reverse the agency ’s conclusion that Schr oeter misrepresented his relationship with M.P. to pr ocure an immigration benefit. Because we must defer to the agency’s credibility determinations, “[a] pe titioner must do more than offer a plausible explanation for his inconsistent statements to secu re relief; he must demo nstrate that a reasonable fact-finder would be compelled to credit his testimony.” Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (internal citation a nd quotation marks omitted). The agency was not compelled to credit Schroeter’s explanation th at he provided this false testim ony to protect his daughter who was in the courtroom, since Schroeter knew his da ughter could be asked to leave and waited until the government presented conflicting evidence at a subsequent hear ing to retract and explain his prior false testimony. Second , the agency did not err in concluding that, even if statutorily eligible for a waiver of inadmissibility under 8 U.S.C. § 1182(i), Schr oeter did not warrant a waiver as a matter of discretion. We lack jurisdiction to consider Schr oeter’s argument that th e IJ did not “properly assess” the equities of his s ubstantial hardship claim because this argument does not raise colorable constitutional claims or questions of law. See 8 U.S.C. §§ 1182(i)(2), 1252(a)(2)(B), (D); Zhang v. Gonzales , 457 F.3d 172, 175-76 (2d Cir. 2006). Schroeter’s second challenge on6 this score—that the IJ committed a legal error by not considering the effect that deportation would have on Schroeter’s daughter —also fails. Because the relevant provision requires that the petitioner demonstrate that his or her “spouse or parent” will endure extreme hardship, 8 U.S.C. § 1182(i)(1), Schroeter’s daughter is not a qualifying relative for the purpose of a 212(i) waiver application. For the foregoing reasons, the petition is DENIED in part and DISMISSED in part.
FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK